Federal Civil Practice

Ct. of Appeals lacked jurisdiction to consider defendant-police officer’s interlocutory appeal of Dist. Ct.’s order denying defendant’s motion for summary judgment in plaintiff’s section 1983 action, alleging that defendant failed to intervene in another officer’s use of excessive force on plaintiff during plaintiff’s arrest. Dist. Ct. found that there was evidence supporting plaintiff’s claim that defendant had witnessed other officer both slam handcuffed plaintiff on ground and perform leg sweep on plaintiff, and existence of factual dispute as to whether defendant had realistic opportunity to intervene was question for jury, which precluded defendant from seeking instant interlocutory appeal.

Dist. Ct. erred in denying defendant-Governor’s motion under Rule 60(b)(5) to vacate Shakman Decree that had been entered in 1972 to preclude Governor and units of local government from conditioning employment decisions on political patronage. Defendant was able to show that 1972 judgment has been satisfied, where: (1) last significant violation of decree occurred nearly 10 years ago with patronage scandal within Dept. of Transportation, and there was no finding of patronage practices harming individual employees or applicants within last seven years; and (2) Governor’s office has instituted or supported several remedial measures in recent years to minimize risk of political patronage in employment practices. Fact that Dist. Ct. believed defendant could do more to implement Governor’s Employment Plan or that there was still risk of unlawful political patronage did not require different result. Ct. of Appeals also observed that continuing to hold defendant to 1972 consent decree would affront principles of federalism and improperly leave Dist. Ct. with playing role at odds with Case or Controversy limitation in Article III of U.S. Constitution. Dist. Ct., though, is available to consider individual claims alleging unlawful patronage.

Dist. Ct. did not abuse its discretion in denying plaintiff’s Rule 60(b) motion to reconsider Dist. Ct.’s dismissal of their action under Religious Land Use and Institutionalized Persons Act involving plaintiffs’ failed attempt to purchase property for worship services, where plaintiffs based reconsideration on argument that was not raised in prior pleadings. Dist. Ct. could properly base denial on fact that plaintiffs could have made same argument prior to Dist. Ct.’s dismissal of their action. Fact that plaintiffs had withstood dismissal in parallel litigation before different Dist. Ct. judge in same federal district did not constitute extraordinary circumstance that would warrant Rule 60(b) relief.

Dist. Ct. did not err in dismissing for failure to state valid claim plaintiffs-parents’ section 1983 action, alleging that defendants-various state and county officials, children’s hospital, and children’s home, violated their rights to familial integrity, free exercise of religion and due process of law by removing two children from their home and placing them in other residential settings that hindered their ability to raise them in accordance with their Orthodox Jewish faith. Dist. Ct. dismissed certain claims with respect to one child because they accrued prior to applicable six-year limitation period. With respect to other child, plaintiffs, who sued child’s guardian and social worker, only alleged that said individuals authorized release of child’s medical records and approved child’s stay at youth shelter, which did not serve to deprive plaintiffs of their right to familiar integrity or free exercise of religion. Also, social worker was entitled to absolute immunity when she sought successful court order for intervention in child’s case that led to placement of child outside plaintiff’s home. Too, plaintiffs could not proceed against defendants-County or child welfare agency, where plaintiffs failed to establish existence of either express policy or unwritten practice that could subject either entity to liability under Monell.

Dist. Ct. did not err in granting defendants-police officers’ motion for summary judgment in plaintiffs’ section 1983 action, alleging that defendants violated their 4th and 1st Amendment rights during incident where police had received 9-1-1 call indicating that defendants had followed victim to her property and refused to leave even though victim had directed them to do so. While defendants arrested plaintiffs on obstruction of justice charges based on plaintiffs failure to provide defendants with identifications when defendants confronted plaintiffs on victim’s property, said refusal was insufficient to establish probable cause for obstruction charge. However, defendants had probable cause to arrest plaintiffs on criminal trespass charge based on victim’s statements to police. As such, plaintiffs could not proceed on their 4th Amendment charge, where there was probable cause to arrest them on at least one charge. Also, plaintiffs could not proceed on their First Amendment claim arising out of their arrests on obstruction charge, where: (1) defendants had probable cause to arrest them on criminal trespass charge; and (2) plaintiffs did not have First Amendment right to withhold their identifications.

Dist. Ct. did not err in granting defendants-police officers’ motion for summary judgment in plaintiff-estate’s section 1983 action, alleging that defendants violated decedent’s 4th Amendment rights by subjecting him to false arrest and by failing to protect him from self-harm when decedent hung himself in jail cell. While Dist. Ct. found that defendants had probable cause to arrest decedent on domestic violence charge, defendants could not rely on said charge to defeat false arrest claim, where said charge was not criminal liability statute under Wisconsin law. However, defendants had probable cause to arrest decedent on battery charge so as to defeat false arrest claim, where: (1) police came upon injured decedent’s roommate, who had fallen from fourth-story bedroom window; (2) police observed decedent naked, intoxicated and passed out on bed in disheveled room containing broken glass, broken lamp and drops of blood; and (3) police had previously received disturbance call in which roommate claimed that decedent was aggressor. Also, plaintiff could not proceed on failure to protect claim, where defendant-officer presented evidence that he did not act objectively unreasonable in events leading up to discovery of decedent hanging in his cell, where: (1) officer had no reason to think that decedent was suicidal during screening process, and decedent did not tell officer that he was suicidal; (2) decedent’s general distress and history of psychiatric treatment would not give notice of suicidal risk; and (3) 45-minute gap between last observation and discovery of decedent hanging in his cell was not unreasonable in absence of notice of suicide risk (Dissent filed.)

Dist. Ct. did not err in denying on four occasions plaintiff-prisoner’s request for recruitment of pro bono counsel in plaintiff’s action, alleging that primer sold by defendant-manufacturer irritated plaintiff’s eyes when plaintiff was housed at prison facility and that defendant-prison doctor mistreated plaintiff’s eyes. Dist. Ct. could properly deny first three requests for recruitment of pro bono counsel, where said requests came too early in litigation, and where Dist. Ct made observation that plaintiff understood basis legal principles that applied to his claim and did not display any difficulty in reading, writing or understanding documents he received from defendants or court. With respect to fourth motion for recruitment of pro bono counsel that accompanied plaintiff’s response to defendant’s motion for summary judgment (which was eventually granted by Dist. Ct. on ground that plaintiff had failed to submit expert testimony to support his claim), Dist. Ct. could properly look to underlying merits of plaintiff’s claim to deny said recruitment motion. In this case, Dist. Ct. observed that plaintiff’s case did not warrant recruitment of pro bono counsel, where there was absence of evidence that defendant-doctor had provided negligent medical care or that defendant-manufacturer’s safety precautions were inadequate.

Dist. Ct. erred in granting defendant-prison employee’s motion for summary judgment in plaintiff-prison worker’s section 1983 action, alleging that defendant terminated him in violation of his First Amendment rights by refusing to let him attend religious services and then retaliating against him when he nevertheless went to said services. While Dist. Ct. agreed with defendant that dismissal was warranted under Prison Litigation Reform Act because plaintiff had not filed formal grievance focused on his termination prior to bringing instant action, Ct. of Appeals held that applicable written policy excepted plaintiff’s case from required administrative process. As such, plaintiff could proceed with his action.

Dist. Ct. did not err in dismissing plaintiff’s action seeking declaration that his rights were violated by defendant-Election Board that struck his name from 2019 Republican primary ballot, under circumstances where plaintiff had previously supported two independent candidates against two Republican candidates, and where, because plaintiff had done so, state chairman of Republican Party banned plaintiff from Republican Party for ten-year period. While plaintiff had met all statutory requirements for appearing on Republican Party primary ballot, defendant could properly remove plaintiff from Republican Party ballot, since: (1) decision to strike plaintiff from ballot imposed only minor restriction on his ballot access, where plaintiff had alternative means to access general election ballot as independent or write-in candidate; and (2) state has valid interest in protecting party’s right to determine its own membership and limit its candidates to those party members.

Dist. Ct. erred in denying plaintiff’s request for attorney’s fees and costs as prevailing party in Endangered Species Act (Act), arising out of defendants’ mistreatment of endangered and threatened animals at their zoo. Plaintiff was prevailing party pursuant to Dist. Ct.’s entry of default judgment against defendants and entry of permanent injunction that prohibited defendants from possessing or exhibiting animals. Moreover, Dist. Ct. could not deny request for attorney’s fees based on belief that: (1) there were questions as to plaintiff’s standing to bring instant action; (2) plaintiff did not contribute substantially to outcome of case where defendant closed zoo because of illness of one of its owners; (3) plaintiff’s case did not advance goal of Act; and (4) plaintiff was not dependent upon fee awards. As such, plaintiff was entitled to determination of fee award based on “lodestar” method that requires Dist. Ct. to calculate number of reasonable hours worked in case multiplied by reasonable hourly rate. Also, Dist. Ct. could not deny plaintiff’s request for costs, which are presumptively awarded under Rule 54(d). (Dissent filed.)